Justice Stanley Mosk Was a Cool Dude

We are in the process of wading through a biography entitled JUSTICE STANLEY MOSK, A LIFE AT THE CENTER OF CALIFORNIA POLITICS AND JUSTICE (2013), by Jacqueline R. Braitman and Gerald F. Uelmen, and we have good news and bad news. The good news is that the book provides much insight into Stanley Mosk’s personal and political life. The bad news is that when it comes to his legal accomplishments, the authors do him an injustice by concentrating only on his involvement in politically correct subjects: such as the death penalty, affirmative action, and similar stuff dear to the liberals’ hearts.

Although in the second half of the twentieth century, eminent domain controversies, both direct and inverse, have been major topics of litigation in California, as well as countrywide, and produced over two dozen cases decided by the California Supreme Court while Justice Mosk was a member of it, you’d be hard put to find a mention any of them in this book. Evidently, that would be “politically incorrect.”

I always found Justice Mosk to be an interesting person. Though a fully credentialed Democrat of the liberal persuasion, he was not like the hard-left types who today call themselves liberals but are about as illiberal as they can get, hewing unyieldingly to an agenda of “political correctness” that often victimizes the very people it purports to favor — like lower middle-class, and lower class condemnees who get bulldozed in these cases with little or no compensation  but receive from California courts nothing but sympathy (see County of L.A. v. Ortiz, 6 Cal.3d 141 (1971) — one of Justice Mosk’s lesser opi). The authors dwell on substantive topics like, for example, affirmative action, same-sex marriage, and the death penalty, all of which they evidently consider to be the raison d’etre for the existence of courts, and never mind all that yucky property stuff, except of course when it comes to their own property.

We are sorely tempted to take a detailed shot at all this, but apart from space limitations,  the point of this post is to deal primarily with eminent domain which is something that is not to be found in this book. Still,  while on the Court, Justice Stanley Mosk was a giant in the field, notably direct condemnation, which he dominated  like no other California judge that we can think of. You name an eminent domain topic, and he wrote a leading, significant opinion or opinions on it. True, it was an altogether different Stanley Mosk when it came to regulatory takings which were decidedly not his cup of tea. But hey man, in this imperfect world sometimes you have to settle for a half a loaf. And his inverse condemnation opinion in Klopping v. City of Whittier (8 Cal.3d 39 (1972)) certainly was a masterpiece.

We have a special, personal feel for his exertions because your faithful servant appeared as counsel in six cases that yielded Mosk opinions on the merits, plus another six, as amicus curiae, on one side or the other. So whatever you may want to say about our perceptions of Justice Mosk’s efforts, we certainly had ample opportunity to observe him in action, and to make a sound judgment — even if you substantively disagree with us.

Moreover, Mosk wrote more truly significant, precedent-making opinions in eminent domain cases than any other California appellate judge we can think of. You don’t believe us? Then take a look at Nestle v. Santa Monica (1972), denying immunity for nuisance to California airports; Klopping v. Whittier (1972), establishing inverse condemnation liability for unreasonable government precondemnation conduct that blights land targeted for condemnation, in an effort to lower values, as well as Southern Cal. Edison Co. v. Bourgerie  (1973), establishing eminent domain compensability of covenants running with the land. These were doctrinal achievements of the first rank. Any one of them would have made for a career capstone of a judge’s career, but Mosk authored three of them.

Then there were the Mosk dissents. In People v. Superior Court (Rodoni) (1968) Mosk authored a tart dissent in which he wondered whether the majority opinion (approving the taking of over 50 acres of land, where the state plans required only 5 acres) heralded the premature arrival of Big Brother. He was proven right when the California Little Hoover Commission later investigated the state’s excess land acquisition program and  discovered that far from saving the state money (as claimed by the Division of Highways), it was a rathole into which the State had sunk some $100 million to acquire land it could neither use nor sell.

To say nothing of Mosk’s dissents in White (1980)  and Belair (1988) in which he took the property owners’ side on grounds of simple justice. In White the County took the owners’ land, paid compensation, and then imposed an assessment on them in the same amount — what Justice Mosk aptly called paying them and then picking their pockets. In Belair a flood protection levee failed at some 30% of its design capacity, but the majority departed from the settled no-fault standard of inverse condemnation law and demanded (after the fact, and without giving the owners an opportunity to brief the point)  that the washed-out land owners were required to demonstrate “unreasonable” action by the Flood Control District before they could recover. But wasn’t the levee design that failed at a mere 30% of its design capacity plenty unreasonable enough? Or at least a clear case of res ipsa loquitur?

In short, though uneven at times, Mosk could display a sense of justice in a field replete with injustices, and did not hesitate to tackle conventional legal wisdom when it appeared that the demands of justice so required.

Finally, we have a personal feeling for Justice Mosk’s willingness to recognize legal merit in a lawyer’s position, even when he might not have been in agreement with that lawyer’s arguments. In our case, see 24 Loy. L. Rev. at 516, where he flattered the living daylights out of your faithful servant, even as he recognized that we could at times be a bit sharp-tongued toward their Lordships’ effusions. That may be true, but perhaps he recognized that we hold judges in high esteem and therefore hold them to high standards of performance. But all that did not keep Justice Mosk from chewing us out good and proper during the oral argument in the San Diego v. Neumann case (6 Cal.4th 1 (1994)). On the other hand, in that oral argument case he was also pretty hard on Justice Ron George, so at least we can say that we were in good company. And oh yes, we won that case 4 to 3 (Justice Mosk dissenting) which is a lot better than the alternative.

Which brings us to the nub of this article. Why wasn’t any of Justice Mosk’s virtuosity in eminent domain law  and his influence on that field so much as mentioned in the Braitman-Mosk book? Beats us.

We close with recalling the last thing Justice Mosk said to us. He concluded his last personal letter with the sentence “You are cool.” You too, Stanley.  Imperfect perhaps, but cool.


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